Abney v. Younker

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CLARENCE ABNEY, : Civil No. 1:13-CV-01418

:

Plaintiff, :

:

v. : Judge Jennifer P. Wilson

:

SERGEANT CALEB YOUNKER, et al., :

:

Defendants. : Magistrate Judge Martin C. Carlson

MEMORANDUM

Before the court are cross motions for summary judgment, a report and

recommendation from United States Magistrate Judge Martin C. Carlson

addressing those motions, and objections to Judge Carlson’s report and

recommendation filed by Plaintiff Clarence Abney (“Abney”). (See Docs. 219,

227, 251, 252.) For the reasons that follow, Judge Carlson’s report and

recommendation (Doc. 252) is adopted in its entirety and Abney’s objections to the

report and recommendation (Doc. 253) are overruled. Accordingly, Abney’s

motion for summary judgment (Doc. 219) is denied and the Defendants’ motion

for summary judgment (Doc. 227) is granted in part and denied in part.

STANDARD OF REVIEW

When a party objects to a magistrate judge’s report and recommendation, the

district court is required to conduct a de novo review of the contested portions of

the report and recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3);

Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989). The district court may

accept, reject, or modify the magistrate judge’s report and recommendation in

whole or in part. 28 U.S.C. § 636(b)(1). The district court may also receive

further evidence or recommit the matter to the magistrate judge with further

instructions. Id. “Although the standard is de novo, the extent of review is

committed to the sound discretion of the district judge, and the court may rely on

the recommendations of the magistrate judge to the extent it deems proper.”

Weidman v. Colvin, 164 F. Supp. 3d 650, 653 (M.D. Pa. 2015) (citing Rieder v.

Apfel, 115 F. Supp. 2d 496, 499 (M.D. Pa. 2000)).

De novo review of a magistrate judge’s report and recommendation is not

required where no objections to the report and recommendation have been raised.

Univac Dental Co. v. Dentsply Int’l, Inc., 702 F. Supp. 2d 465, 469 (M.D. Pa.

2010) (citing Thomas v. Arn, 474 U.S. 140, 149 (1985)). Instead, the court is only

required to “satisfy itself that there is no clear error on the face of the record in

order to accept the recommendation.” Id. (quoting Fed. R. Civ. P. 72 advisory

committee’s note to 1983 addition). De novo review is also not required where a

party raises only general objections to the report and recommendation. Goney v.

Clark, 749 F.2d 5, 6–7 (3d Cir. 1984). “To obtain de novo determination of a

magistrate’s findings by a district court, 28 U.S.C. § 636(b)(1) requires both timely

and specific objections to the report.” Id. at 6.

SUMMARY JUDGMENT STANDARD

A court may grant a motion for summary judgment when “there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). A dispute of fact is material if resolution of

the dispute “might affect the outcome of the suit under the governing law.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is

not precluded by “[f]actual disputes that are irrelevant or unnecessary.” Id. “‘A

dispute is genuine if a reasonable trier-of-fact could find in favor of the

nonmovant’ and ‘material if it could affect the outcome of the case.’” Thomas v.

Tice, 943 F.3d 145, 149 (3d Cir. 2019) (quoting Lichtenstein v. Univ. of Pittsburgh

Med. Ctr., 691 F.3d 294, 300 (3d Cir. 2012)).

In reviewing a motion for summary judgment, the court must view the facts

in the light most favorable to the non-moving party and draw all reasonable

inferences in that party’s favor. Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 288

(3d Cir. 2018) (citing Scheidemantle v. Slippery Rock Univ. State Sys. of Higher

Educ., 470 F.3d 535, 538 (3d Cir. 2006)). The court may not “weigh the evidence”

or “determine the truth of the matter.” Anderson, 477 U.S. at 249. Instead, the

court’s role in reviewing the facts of the case is “to determine whether there is a

genuine issue for trial.” Id.

The party moving for summary judgment “bears the initial responsibility of

informing the district court of the basis for its motion, and identifying those

portions of ‘the pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any,’ which it believes demonstrate the

absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). The non-moving party must then

oppose the motion, and in doing so “‘may not rest upon the mere allegations or

denials of [its] pleadings’ but, instead, ‘must set forth specific facts showing that

there is a genuine issue for trial. Bare assertions, conclusory allegations, or

suspicions will not suffice.’” Jutrowski, 904 F.3d at 288–89 (quoting D.E. v. Cent.

Dauphin Sch. Dist., 765 F.3d 260, 268–69 (3d Cir. 2014)).

Summary judgment is appropriate where the non-moving party “fails to

make a showing sufficient to establish the existence of an element essential to that

party’s case, and on which that party will bear the burden of proof at trial.”

Celotex, 477 U.S. at 322. “The mere existence of a scintilla of evidence in support

of the plaintiff’s position will be insufficient; there must be evidence on which the

jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. “Where

the record taken as a whole could not lead a rational trier of fact to find for the

non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co.,

Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

PROCEDURAL HISTORY

The facts of this case arise from an incident at the State Correctional

Institution in Huntingdon, Pennsylvania (“SCI Huntingdon”) on June 29, 2012.

(Doc. 1.) Abney, an inmate at SCI Huntingdon, got into an argument with

Defendant Younker, a corrections officer in the prison. (Id.) The argument

escalated to the point that Abney punched Younker in the mouth and Younker and

a number of other guards then assaulted Abney. (Id.) The assault was captured by

surveillance footage in the prison. (Id.)

Abney sued on May 24, 2013, raising six causes of action under the Eighth

Amendment as well as three state law causes of action for assault, battery, and

intentional infliction of emotional distress. (Id.) The claims focus on three distinct

issues arising from the assault: the initial assault, the transport of Abney within the

prison after the assault, and the medical care that Abney received after the assault.

(Id.)

On February 4, 2015, the court granted Defendants summary judgment on

Counts III (which alleged deliberate indifference to a serious medical need) and V

(which alleged supervisory liability against Defendants Stevens and Bickell),

finding that Abney had failed to exhaust administrative remedies as to those

claims. (Docs. 110–11.) On January 27, 2016, the court granted judgment to

Abney against Defendant Lehman in the amount of $91,900 following an

agreement between those parties. (Docs. 141–42.)

On July 29, 2019, Abney filed a motion for summary judgment as to the

issue of liability. (Doc. 219.) Abney’s argument relies on the surveillance footage.

(Doc. 226.) He argues that the footage establishes that there is no genuine issue of

material fact on the question of whether Defendants are liable, and accordingly

asks for summary judgment in his favor on that issue. (Id. at 5.)

The remaining Defendants filed a motion for summary judgment on August

29, 2019. (Doc. 227.) Defendants argue that the video evidence “blatantly

contradicts” Abney’s version of events and that the use of force and amount of

force used were reasonable. (Doc. 228 at 9–15.) Defendants further argue that the

complaint does not sufficiently allege each individual’s personal involvement in

the assault. (Id. at 15–16.) With regard to the transport of Abney within the

prison, Defendants argue that the use of force was not excessive and that they are

entitled to qualified immunity. (Id. at 16–21.) As for Abney’s state law claims of

assault, battery, and intentional infliction of emotional distress, Defendants first

argue that because they should be granted summary judgment on the constitutional

claims, the court should decline to exercise supplemental jurisdiction over the state

law claims. (Id. at 22.) Defendants additionally argue that they should be granted

summary judgment as to the merits of the state law claims and that they would be

entitled to sovereign immunity on the state law claims. (Id. at 22–25.)

JUDGE CARLSON’S REPORT AND RECOMMENDATION

Judge Carlson’s report and recommendation addresses both motions for

summary judgment. (See Doc. 251.) Judge Carlson begins his report and

recommendation by finding that the video evidence of the assault is inconclusive,

but that the video evidence of Abney being transported within the prison supports

Defendants’ version of events. (Doc. 251 at 1–7.)

Turning to a discussion of the summary judgment motions as they relate to

the initial assault, Judge Carlson first finds that Defendants’ personal involvement

argument is without merit since all the Defendants have acknowledged their

personal involvement through statements given after the incident. (Id. at 18–19.)

Judge Carlson then concludes that summary judgment cannot be entered for either

party as to the initial assault given the significant factual disputes as to what

happened. (Id. at 19–21.) Judge Carlson similarly finds that factual disputes

preclude the entry of summary judgment on the issues of sovereign immunity and

the Defendants’ alleged failure to intervene. (Id. at 21–26.)

As for Abney’s claims arising out of his transport within the prison, Judge

Carlson concludes that Defendants are entitled to qualified immunity because

“Abney has not presented evidence from which a trier of fact could conclude that

the[] officers used excessive force during the transport in violation of the Eighth

Amendment,” id. at 30, and because “it was not clearly established at the time of

the 2012 incident that placing an inmate who had assaulted a staff member in

restraints constituted excessive force in violation of the Eighth Amendment.” (Id.

at 32.) Judge Carlson additionally finds that Defendants would be entitled to

sovereign immunity as to Abney’s state law claims because Abney had not

produced any facts to show that the Defendants’ actions had been done in an

outrageous manner such that the actions could be considered outside the scope of

the Defendants’ employment. (Id. at 33.)

Judge Carlson accordingly recommends that Defendants Booher, Huber,

Wertz, and Maxwell be granted summary judgment as to the claims arising out of

the transport of Abney, but that summary judgment be denied in all other respects.

(Doc. 251 at 34.)

On October 13, 2019, Abney filed objections to Judge Carlson’s report and

recommendation, objecting to Judge Carlson’s recommendation that the court

grant summary judgment on the claims arising from the transport of Abney. (Doc.

252.) Abney argues that Defendants are not entitled to qualified immunity as to

these claims. (Id. at 1.) In making this argument, Abney first argues that the

report and recommendation “erroneously reduces Abney’s excessive-force claims

to the mere use of handcuffs and shackles during transport of an injured prisoner.”

(Id. at 3.) Abney asserts that his Eighth Amendment excessive force claim arises

not simply from the use of restraints, but also from the fact that Defendants

dragged or “frog-marched” him through the prison. (Id.) Rather than just a claim

about the use of restraints, Abney argues, “[t]he claims in Count IV arise from the

use of the restraints to facilitate contortions of his body to force his head down and

his elbows up in a manner that cut off his air, exacerbated his brain injury,

rendered him delirious, and spilled his blood all along the parade route through two

cell blocks.” (Id. at 6.) Therefore, Abney argues, because Defendants frog-

marched him through the prison, the “frog-march requires analysis separate from

the application of cuffs and shackles to the injured inmate.” (Id. at 7.)

Abney argues that Judge Carlson erred by making factual determinations

that the court may not make at the summary judgment stage. (Id. at 11.)

Additionally, Abney argues that the factual determinations that Judge Carlson did

make “happen[] to be wrong.” (Id. at 12.) Abney specifically attacks Judge

Carlson’s finding that video footage “does not depict any gratuitous use of force on

Abney other than the fact that he is in restraints and being walked to the RHU with

his arms behind his back, although the video does depict that Abney fell one time.”

(Id. at 11.) Abney argues that this conclusion is wrong since video evidence

actually depicts prison staff using excessive force. (Id. at 12.)

Abney objects that the report and recommendation should not be adopted

since its factual determinations are contradicted by the evidence. (Id. at 13–14.) In

making this argument, Abney points to a number of facts that he asserts Judge

Carlson got wrong, all of which have to do with the medical care Abney received

after the assault. (Id.) Finally, Abney argues that the report and recommendation

should be denied in its recommendation that Defendants be granted sovereign

immunity for the same reasons he argues that summary judgment should be denied

for the excessive force claims. (Id. at 16.)

Defendants filed a brief opposing Abney’s objections on October 25, 2019.

(Doc. 253.) Defendants argue that Abney’s objections amount to nothing more

than a disagreement with Judge Carlson over whether the video constitutes

sufficient evidence to go to trial on Abney’s claims arising out of the transport.

(Id. at 2–4.) They accordingly argue that Judge Carlson’s report and

recommendation should be adopted to the extent he finds that Defendants were

entitled to qualified immunity on the transport claims. (Id.) They argue that the

finding of sovereign immunity should stand for the same reason. (Id. at 4–5.)

Abney filed a reply brief on October 31, 2019. (Doc. 254.) Abney argues

that he did not allege merely the use of restraints, he “alleged torture.” (Id. at 2.)

He alleges that the video evidence confirms this torture, but asserts that Judge

Carlson’s report and recommendation and the Defendants’ arguments address only

the use of restraints (Id.) Abney goes on to argue that “torture through use of

asphyxiation during a contorted frog-march has never been found Constitutional by

any judicial authority.” (Id. at 3.) Abney then argues that “[t]he outrageousness

attending the breaches of the use-of-force policy, as alleged, precludes sovereign

immunity at this juncture.” (Id. at 6.) Finally, Abney argues that Judge Carlson’s

factual findings are contradicted by some of the video evidence in the case. (Id. at

8–9.)

DISCUSSION

At the outset, the court notes that the only objections lodged to Judge

Carlson’s report and recommendation pertain to the period of time in which Abney

was transported within the prison. Accordingly, in reviewing the portions of the

report and recommendation to which no objections have been raised, the court

must only satisfy itself that there is no clear error on the face of record. Univac,

702 F. Supp. 2d at 469.

The court has reviewed those portions of Judge Carlson’s report and

recommendation to which no objections have been raised and finds that there is no

clear error on the face of the record. The court therefore adopts those portions of

Judge Carlson’s report and recommendation as the reasoning of the court.

As for the portions of Judge Carlson’s report and recommendation to which

Abney objects, the court has conducted a de novo review of those portions of the

report and recommendation and agrees with Judge Carlson’s conclusions that

Defendants Booher, Huber, Wertz, and Maxwell are entitled to qualified immunity

and sovereign immunity as to Abney’s claims arising out of his transport within the

prison. The court will analyze those claims below.

A. Defendants Booher, Huber, Wertz, and Maxwell Are Entitled to

Qualified Immunity

The doctrine of qualified immunity recognizes that despite their participation

in constitutionally impermissible conduct, government officials “may nevertheless

be shielded from liability for civil damages if their actions did not violate ‘clearly

established statutory or constitutional rights of which a reasonable person would

have known.’” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). The doctrine “protects government

officials ‘from liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person

would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting

Harlow, 457 U.S. at 818).

Defendants asserting that they are entitled to qualified immunity have the

burden to prove that the doctrine applies. Halsey v. Pfeiffer, 750 F.3d 273, 288 (3d

Cir. 2014). Courts follow a two-pronged test to determine whether qualified

immunity applies. Pearson, 555 U.S. at 232. First, the court must determine

whether the defendants violated the plaintiff’s statutory or constitutional right.

District of Columbia v. Wesby, __ U.S. __, 138 S. Ct. 577, 589 (2018) (citing

Reichle v. Howards, 566 U.S. 658, 664 (2012)). Second, the court must determine

whether the right at issue was clearly established at the time of the violation. Id.

(citing Reichle, 566 U.S. at 664). The court may exercise its discretion in deciding

“which of the two prongs of the qualified immunity analysis should be addressed

first in light of the circumstances in the particular case at hand.” Pearson, 555

U.S. at 236.

Here, Judge Carlson concludes that the Defendants did not violate Abney’s

rights while transporting him within the prison. Judge Carlson notes that the video

evidence “does not depict any gratuitous use of force on Abney other than the fact

that he is in restraints and being walked to the RHU with his arms behind his back,

although the video does depict that Abney fell one time.” (Doc. 251 at 30.) In

addition to the lack of video evidence of an Eighth Amendment violation, Judge

Carlson concludes that “Abney produces no evidence, other than his own belief,

that the restraints were applied, and the manner in which he was walked to the

RHU effected, with the sole purpose to inflict further harm on him.” (Id.) Judge

Carlson accordingly concludes that “Abney has not presented evidence from which

a trier of fact could conclude that these officers used excessive force during the

transport in violation of the Eighth Amendment.” (Id.)

The court agrees with Judge Carlson that there is no evidence of record from

which a finder of fact could conclude that the Defendants violated Abney’s Eighth

Amendment rights while transporting him. Abney has not produced any evidence

beyond the video footage to support a conclusion that the Defendants violated his

Eighth Amendment rights, and the court agrees with Judge Carlson that the video

evidence plainly refutes Abney’s claims of Eighth Amendment violations during

the transport. See Scott v. Harris, 550 U.S. 372, 380 (2007) (noting that summary

judgment is appropriate where video evidence “utterly discredit[s]” the plaintiff’s

version of events).

Moreover, contrary to Abney’s argument, Judge Carlson’s report and

recommendation does not reduce Abney’s Eighth Amendment claim to one about

the use of restraints. Instead, Judge Carlson finds that the video evidence of the

transfer “does not depict any gratuitous use of force on Abney other than the fact

that he is in restraints and being walked to the RHU with his arms behind his back,

although the video does depict that Abney fell one time.” (Id. at 30.) Thus, rather

than reducing Abney’s claim to one about the use of restraints, Judge Carlson

considers the video evidence of the transfer and concludes that the use of restraints

and the fact that Abney’s arms were behind his back are the only possible instances

of gratuitous force that are shown by the video, neither of which Judge Carlson

finds sufficient to establish a violation of the Eighth Amendment.

Abney’s objections therefore amount to nothing more than a disagreement

with Judge Carlson about what the video shows: Judge Carlson reviews the video

and concludes that there are no facts from which a finder of fact could find an

Eighth Amendment violation; Abney reviews the video and concludes that a finder

of fact could find an Eighth Amendment violation. In conducting a de novo review

of this disagreement, the court agrees with Judge Carlson that there is no evidence

of record from which a finder of fact could conclude that the Defendants violated

Abney’s Eighth Amendment rights when transporting him within the prison.

Given that conclusion, the court declines to decide whether the right at issue

was clearly established at the time of the incident. See Pearson, 555 U.S. at 236

(noting that a district court may exercise its discretion as to the order in which it

analyzes qualified immunity prongs). Accordingly, the court finds that Defendants

Booher, Huber, Wertz, and Maxwell are entitled to qualified immunity as to the

claims arising out of the transport of Abney.

B. Defendants Booher, Huber, Wertz, and Maxwell Are Entitled to

Sovereign Immunity

The Eleventh Amendment of the United States Constitution provides that

state governments and their agencies are entitled to sovereign immunity. U.S.

CONST. amend. XI. The doctrine of sovereign immunity extends to both state

agencies and their employees. Hollihan v. Pa. Dep’t of Corr., 159 F. Supp. 3d

502, 510 (M.D. Pa. 2016) (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58,

66 (1989)).

Pennsylvania law reaffirms the Eleventh Amendment’s grant of sovereign

immunity by providing that employees of state agencies “acting within the scope

of their duties” are entitled to sovereign immunity. 1 Pa.C.S. § 2310. An

employee’s conduct is within the scope of his employment if (1) the conduct is of

the kind the employee is employed to perform; (2) the conduct occurs within the

time and space limits authorized for the employee’s job; and (3) the employee

engages in the conduct with at least a partial purpose of serving his employer.

Brumfield v. Sanders, 232 F.3d 376, 380 (3d Cir. 2000) (quoting Restatement

(Second) of Agency § 228). In addition, if force is used by the employee, the force

must be of such a nature that it was “not unexpectable by the employer.” Farmer

v. Decker, 353 F. Supp. 3d 342, 350 (M.D. Pa. 2018) (quoting Savage v. Judge,

No. 05-CV-02551, 2007 WL 29283, at *5 (E.D. Pa. Jan. 2, 2007)).

On the issue of sovereign immunity, Judge Carlson finds that “Abney

produces no evidence from which a reasonable factfinder could infer that

[Defendants Booher, Huber, Wertz, and Maxwell] acted in an outrageous manner

when they transported him to the RHU in restraints after the assault.” (Doc. 251 at

33.) Judge Carlson states that he therefore “cannot conclude that the defendants’

conduct was so outrageous as to fall outside the scope of their employment as

correctional staff” and accordingly concludes that they are entitled to sovereign

immunity. (Id.)

The court agrees with Judge Carlson that there is no evidence of record from

which a finder of fact could conclude that Defendants Booher, Huber, Wertz, and

Maxwell were acting outside the scope of their employment when they transported

Abney. Accordingly, the court finds that Defendants Booher, Huber, Wertz, and

Maxwell are entitled to sovereign immunity as to the claims arising out of the

transport of Abney.

CONCLUSION

For the foregoing reasons, Judge Carlson’s report and recommendation is

adopted in its entirety and Abney’s objections to the report and recommendation

are overruled. Accordingly, Abney’s motion for summary judgment is denied, and

the Defendants’ motion for summary judgment is granted in part and denied in

part. An appropriate order follows.

s/Jennifer P. Wilson

JENNIFER P. WILSON

United States District Court Judge

Middle District of Pennsylvania

Dated: January 30, 2020